Michela Alioto-Pier Ruled Ineligible By Court of Appeal

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Luke Thomas
The city has shaken its Alioto-Pier Magic Eight Ball once more...
​The city's Brett Favre-like quandary over whether Supervisor Michela Alioto-Pier is eligible to run for another term swerved once again today. The state court of appeal this afternoon overruled superior court Judge Peter Busch and sided with city attorney Dennis Herrera in declaring Alioto-Pier, the District 2 incumbent, ineligible.

Alioto-Pier's husband, Tom Pier, told SF Weekly the supervisor plans to file a petition with the state supreme court by the end of Wednesday. Time is of the essence, as the department of elections hands off the ballot to the printer's office on Sept. 1.

The question of whether or not Alioto-Pier is eligible to serve again comes down to a parsing of legal arcana every bit as ponderous as Bill Clinton's famous utterance "That depends on what the meaning of the word 'is' is." But, this time, there's no subtext of clandestine Oval Office sex to spice things up. Here, as concisely as possible, is a summary of the legal battle this far:

Ever since Herrera opined in 2008 that Alioto-Pier was ineligible to run again, the D-2 supe has hinted at legal action. That lawsuit came in June. Here's the crux of it: Herrera applied the "rounding-up rule," which states that anyone appointed to serve two or more years of a four-year term has, in the eyes of the law, served a complete first term. Alioto-Pier saw things differently. After being appointed by newly elected Mayor Gavin Newsom to fill his seat, she served 10 months. Then she was elected to a two-year term. And then, in 2006, she won her "first" four-year term.

Dennis Herrera by Jim Herd.jpg
Jim Herd
Dennis Herrera says this was the voters' will...
That's how Judge Busch saw things, too. But, today, a three-judge appeals panel sharply disagreed. In a 23-page ruling, the judges felt that Alioto-Pier's interpretation, "if accepted, would create an exception to the term limits provision that would swallow the rule, as it would give her the opportunity to serve almost three full terms instead of the two terms contemplated" by the city charter. "And it would ignore rounding up. This would be, in statutory interpretation language, an absurd result, which courts must try to avoid." The appeals court argues that the will of voters asked to decide on term limits measures - and, based on what they read in voter pamphlets - is ill-served by a legalistic argument that favors appointed candidates over elected ones.

All along, Alioto-Pier has portrayed Herrera's relentless opposition to her candidacy as a political vendetta. She pointed out that, by highlighting the difference between two-year terms and four-year terms, a Herrera ruling allowed progressive Tom Ammiano to serve 14 years on the board. Others have pointed out Herrera's friendship with Clint Reilly - husband of Janet Reilly, who is vying to succeed Alioto-Pier. Today's ruling by the appeals court doesn't blow those arguments out of the water - but it does go to show that Herrera's legal opinion was not only legally defensible, but good enough to convince three appeals court judges and win a unanimous victory.

Janet Reilly, not surprisingly, welcomed today's ruling gleefully. In a nifty touch, she noted in a press release: "Let me be among the first to congratulate Michela for her seven years of public service.

"Now that we have clarity," she continues, "I am looking forward to continuing my door-to-door campaign to meet the voters od District Two."

Clarity is the one thing we don't have. Maybe next month.

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